For the lame-duck session, add another bill to the Senate agenda that is very likely to consume valuable floor time: legislation extending provisions of a 2008 surveillance law that are set to expire at the end of the year.
Sen. Ron Wyden (D-Ore.) has placed the bill (S 3276) on hold, meaning that the measure’s backers will probably have to go through a cumbersome floor process to overcome that hold unless they can persuade him to stop blocking the legislation.
But, aides said, Senate Majority Leader Harry Reid (D-Nev.) wants to move the bill. Intelligence officials in the Obama administration have deemed the extension measure their top legislative priority. The expiring provisions allow the federal government to conduct surveillance of foreign targets without individual court orders, even if those targets are communicating with people in the United States.
“We expect in the lame duck to complete the” extension, said an aide to the Intelligence Committee, which in June approved the bill, sponsored by Chairwoman Dianne Feinstein (D-Calif.). “It needs to be done by the end of the year. The leader’s office knows this is must-pass legislation in the lame duck and that it may require some floor time. We’re arranging the details of how we’ll get it.”
A leadership aide added that “this is something we will almost certainly deal with during the lame duck.”
The 2008 law (PL 110-261) was the culmination of years worth of contentious congressional debate about President George W. Bush’s warrantless wiretapping program. It remains somewhat controversial. This week, the Supreme Court heard oral arguments to determine whether a group of journalists, lawyers and organizations can move forward with a legal challenge to the law.
Wyden placed a hold on the bill because he wants more information on how widely the government has swept up the communications of U.S. citizens and out of concern for whether the law could be abused to violate Americans’ privacy.
The director of national intelligence, James R. Clapper Jr., is the defendant in the lawsuit at the center of the Supreme Court case. He has pressed Congress to extend the expiring provisions of the 2008 law, itself an update of a 1978 law known as the Foreign Intelligence Surveillance Act.
“FISA allows us to collect vital information about international terrorists and their activities overseas,” said Shawn Turner, a spokesman for Clapper. “It has and continues to produce significant intelligence critical to the protection of our nation. Reauthorization is our top legislative priority.”
Feinstein has rejected fears that the surveillance authority has been abused, writing in a report on the bill that she was confident that there had been “relatively few incidents of non-compliance” with the law.
“Where such incidents have arisen, they have been the inadvertent result of human error or technical defect and have been promptly reported and remedied,” she wrote. “Through four years of oversight, the committee has not identified a single case in which a government official engaged in a willful effort to circumvent or violate the law.”
When the bill comes to the floor, Wyden will try to address a “loophole” in the 2008 law that “allows intelligence agencies to deliberately search through potentially large piles of communications to find the phone calls and emails of specific Americans,” according to spokesman Tom Caiazza.
“They can do this without getting a warrant or emergency authorization on anyone. This is clearly something that the United States Senate should be debating and it is the reason the senator put a hold on the bill in the first place,” Caiazza said. “When the bill comes to the floor, Sen. Wyden will offer an amendment to close this ‘back-door searches’ loophole and will do everything he can to ensure that it gets the consideration it deserves. A statute as far-reaching and potentially problematic as this should not be extended for five years without floor debate and a vote.”
Wyden’s hold isn’t the only issue unresolved about the legislation.
A bill (HR 5949) that the House passed in September would extend the expiring surveillance authority through the end of 2017; it is similar to the version approved by Feinstein’s committee, which would extend the authority through mid-2017.
When the Senate Judiciary Committee marked up the Intelligence-approved legislation, it pulled the expiration date back to 2015. The two chambers will have to reconcile the three dueling expiration dates.
Then there is the possibility of the Supreme Court allowing a legal challenge. The court did not focus on the constitutionality of the law itself in oral arguments this week but rather whether those challenging its constitutionality had the standing to do so.
If the court rules that the challengers, led by Amnesty International USA, have the right to sue the government, it could open the door to striking down the law.